Citing Obama's State Secrets Privilege, Court Tosses Torture Case

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Citing Obama's State Secrets Privilege, Court Tosses Torture Case

Citing the Obama administration's evocation of the state secrets privilege, a divided federal appeals court agreed Wednesday to toss a lawsuit against a Boeing subsidiary accused of helping the CIA transport detainees to secret foreign prisons where they allegedly were tortured.

Ruling 6-5, a panel of the 9th U.S. Circuit Court of Appeals said it was bound by a 1953 Supreme Court precedent requiring judges to dismiss cases if litigating them could expose government secrets and imperil national security.

"This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security," Judge Raymond Fisher wrote for the majority. "Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. (.pdf)

"On those rare occasions, we are bound to follow the Supreme Court's admonition that 'even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake,'" Fisher continued.

The majority concluded that, "after much deliberation, we reluctantly conclude this is such a case."

The outcome underscores that, at least insofar as the state secrets privilege is concerned, President Barack Obama has taken the same path of his predecessor, despite claims he would limit his use of the privilege. President Obama has continued to invoke the privilege in cases left over from the Bush administration, and has argued for it in newer cases as well.

Attorney General Eric Holder acknowledged a year ago that the government was continuing with pending Bush privilege assertions, but claimed it would only invoke the privilege when there's a possibility of "significant harm" to the country, and wouldn't use it to hide embarrassing or illegal government programs.

The state secrets privilege is a defense first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Generally, lawsuits in which national-security information may be divulged are tossed by judges at the government's request.

The case decided Wednesday was brought by five foreign nationals who claimed the CIA, working with other governments, operated a so-called extraordinary rendition program to gather intelligence. The program, the court said, called for apprehending foreign nationals suspected of terrorism and secretly transferring them to foreign countries "to employ interrogation methods that would otherwise have been prohibited under federal or international law."

The plaintiffs sued Jeppesen Dataplan, a California-based subsidiary of Boeing, which they accused of providing aircraft and "logistical support" to the alleged rendition program.

First the Bush administration, and then the Obama administration, urged the courts to toss the case based on the state secrets privilege. Then-CIA Director Michael Hayden said the lawsuit threatened to impose "exceptionally grave" damage to U.S. national security, an assertion later backed by Holder.

"Whether or not Jeppesen provided logistical support in connection with the extraordinary rendition and interrogation programs, there is precious little Jeppesen could say about its relevant conduct and knowledge without revealing information about how the United States government does or does not conduct covert operations," the majority of the San Francisco-based appeals court noted.

In dissent, Judge Michael Daly Hawkins wrote that the majority dismissed the case prematurely, "before Jeppesen has even filed an answer to plaintiffs' complaint."

The plaintiffs, Hawkins wrote for the minority, should be given a chance to prove their case without classified information.

"Here, the 'very subject matter' of this lawsuit is Jeppesen's involvement in an overseas detention program. Plaintiffs are neither parties to a secret agreement with the government, nor are they attempting, as the result of this lawsuit, to solicit information from the government on a 'state secret' matter," Hawkins wrote. "Rather, they are attempting to remedy 'widespread violations of individual constitutional rights' occurring in a program whose existence has been made public."